“I Just Want to Know My Rights” or “Do You Offer Free Consults?”

I often get phone calls from people stuck in some kind of dispute or fight over children who say to me, “I just want to know my rights.”  What they usually mean is that they want me to provide them legal advice for free or practically free.

There’s very little upside for me in that phone call.  If I provide legal advice, that act creates professional responsibilities for me, with the risk of a grievance or a legal malpractice lawsuit.  Those responsibilities include, among other things, (1) to ask enough questions to be able to provide competent advice, (2) to actually provide competent advice,  (3) to keep the secrets they share with me, and (4) to keep records so that I don’t later on put myself in a possible conflict of interest by helping someone opposed to them.  I also create a risk that they will have reason to believe I am representing them and therefore have a much broader and continuing obligation to them.  So I have to work hard to make sure that doesn’t happen.  I’m spending my time on it with all kinds of risk and almost no upside.  It’s like betting a couple hundred dollars on a bet and the only possible outcomes are losing lots of money, losing my license to practice, or just losing the money I bet.

So when I get this call in a child custody/child visitation situation, I almost always give an answer that is something like this:

“You have the right to hire a lawyer to sue the other person to try to get what you want. If you’ve been served with a lawsuit, you have the right to hire an attorney to defend you and try to get what you want or prevent the other person from getting what they want.

‘You have the right to call a state agency that might help you, for example, the Attorney General’s Office if you want child support from the other person, or Child Protective Services if the other person has hurt your child or put your child in danger.  You may be able to represent yourself in Court, but if the stakes are high I really do not recommend it. If you do represent yourself, you might be able to hire me or another lawyer to do certain specific tasks to make sure you get off on the right foot (like creating and assembling the documents you need to file to get the case started, or reviewing documents created by the other person or their lawyer and explaining them to you).

‘Finally, you need to act quickly.  The longer you wait the harder it is to get what you want.  Depending on what has already happened in the case, there might be specific deadlines to accomplish certain things.  If you miss those deadlines you might be missing your opportunity to protect your rights, you might be missing your opportunity to undo what a Court has already done.”

Then depending on the specific situation we might go into more detail.  If you signed something you might have time to revoke it.  If you missed a deadline to file an Answer, it might not be too late to file that Answer anyway to prevent a default judgment, as long as the other party hasn’t already gone to court and obtained a judgment against you.  If there was a trial or a default you might be able to get a new trial and force the other party to start over, but the deadlines are strict and it matters because a judge has a lot more power to give you a new trial than an appellate court does. If you miss that deadline, there’s another deadline for filing an appeal or a Bill of Review or a some other action attacking the judgment.  These are just some examples of the need to act quickly.

Many lawyers offer a “free initial consult.”  I usually do.  This does not mean the lawyer is offering free legal advice or other free legal services.  It means she is willing to commit a certain amount of time (during which she is not earning any money by working on another case) to get enough information from you to explore whether there is anything she can do for you, decide if she wants to take your case, educate you about what will be involved in accomplishing those goals, answer any questions you might have about her ability to satisfy your expectations, and discuss the cost and other terms of her employment.

I went to law school, as many lawyers did, because I wanted to help people.  That doesn’t mean I can afford to spend my productive time not earning any income.  I definitely can’t afford to risk my livelihood by providing free advice that can come back to bite me.  Too often I see someone who cut costs on the front end and now are willing to spend much much more to try to undo what would have been much easier to get right in the first place.  If you can’t afford my services, the best I can do is explain to you the risk of not hiring a lawyer to help you and possibly refer you to other possible help.

Posted in Due Process, Family Law, Parental Rights | Leave a comment

Do We Own Our Guns?

I know.  It sounds like a crazy question, something only lawyers might argue about?  But private property rights are a core component of our Constitutional system and the foundation on which recent progress in civil liberties has been built.  The recent compromise deal on background checks in the news is important, in part, because, by excluding truly private sales not connected with commercial settings, it tries to make sure the answer to that question remains, “Yes!”  What am I talking about?

As I discussed in a previous post, one of the problems with the Bill proposed by Senator Feinstein was the requirement for background checks on all firearm “transfers,” especially when the Bill (1) defined “transfer” so broadly as to even include a brief loan during which the firearm never left the presence of the owner, (2) required those background checks to be performed by licensed firearms dealers, and (3) did not have any requirement or guarantee that a licensed firearms dealer would be available or willing to perform the background check for any given transfer.  An earlier version of Feinstein’s Bill (never introduced in the Senate and since removed from Feinstein’s own website) would have prohibited the transfer of certain grandfathered “assault weapons” by any means, even by inheritance, requiring instead that they be turned in to the government at the death of the owner.

So what does it mean to own something?  In its simplest form, ownership is usually defined as the right to exercise dominion over something and to exclude others from exercising dominion over it.  In other words, you own something if you and you alone have the right to do what you want to with it, to use it for its intended lawful purpose, enjoy it, improve it, profit from it, hide or lock it away, lend or lease it out, give it away or sell it, leave it to someone in your Will, or even destroy it.

There is also a time component to ownership.  Ownership is not complete if it expires with the passage of time.  You can’t take it with you, but you can decide who gets it when you pass away. That is one characteristic of complete ownership.  It is built into laws of inheritance.  It’s what we use Wills for.  It’s why a Deed granting the maximum ownership of land (a fee simple absolute) uses words like “to Jane Smith and her heirs.”  This language shows that the transfer of the property is not for a limited duration but is permanent to Jane Smith and allows her to give it away or sell it or do anything else that she wants do do with it within the limits of the law.  So complete ownership of something means the exclusive right to exercise dominion over it by you and then by whoever inherits it when you die.

When the right to exercise dominion is limited in time, this is less than complete ownership.  If you go to the owner of a beach house and give him money to let you have that beach house for a week, we don’t say that you “own” the beach house, we say that you have “rented” the beach house.  You have many of the rights associated with ownership of the beach house, but not all of them.  The owner has superior rights, though limited by contract and by law.

But sometimes we still call it ownership when it is for a limited time, usually when the thing itself only exists for a limited period of time.  For example, patents and copyrights exist for limited periods of time.  They are created by Federal laws and do not exist except for the laws that create them.  They exist for certain numbers of years and then enter the public domain.  So someone can own a patent or copyright for a limited period of time and then no one owns it because, in a sense, the patent or copyright does not exist anymore.  Similarly, there are ownership interests in land that exist for limited periods of time which can be bought and sold and are still considered types of ownership.  The most common example is a life estate, which lasts for the duration of a certain person’s life and then does not exist anymore, when the land reverts to another form of property estate owned by someone else.

What does it all have to do with gun?  Well, up until now, no doubt, you think you own your guns.  You get to exercise dominion over them (more or less, depending on where you live).    You and you alone can decide what you want to do with it, you can use it for its intended lawful purpose, enjoy it, lend it or lease it out, give it away or sell it, leave it to someone in your Will, or even destroy it. Plus, your ownership is not limited in time.  You and your heirs can keep it for as long as it exists.

However, your right to the use and enjoyment of your gun is already limited by the various and differing federal, state, and local laws around the country.  Unless you are in an “open carry” state, the law interferes with your ability to carry a weapon for self defense. And, your right to sell your gun is limited by law as well, for example, bans on sales of guns in the parking lots of gun shows.  In some jurisdictions, the restrictions on your ownership rights may be so severe that you have to ask yourself whether you really do have exclusive dominion over your guns.

Why does it matter?  There are all kinds of legal restrictions that affect our use and enjoyment of our property, but we don’t doubt our ownership it.  Speed limits interfere with the use and enjoyment of my car.  Laws require me to keep my brake lights in working order to be able to legally drive on the public roads.  There are legal limitations on what kinds of modifications I can make to my car and still drive it on the public roads.  And still, once I have paid for my car, I own it.  I can still exclude all others from it, I can destroy it if I want to, i can give it away if i want to, and i can sell it to anyone that I want to, regardless of whether it is street legal.  However, interfere with my ownership rights enough and it is not even fair or accurate to say that I own the property.

Am I exaggerating?   In fact, the law recognizes different situations in which a government or private entity has exercised so much dominion over my property that it has effectively deprived me of my property.  If it’s a private entity, then the act may amount to a crime like theft or criminal mischief, or the civil tort of conversion.  If it’s a government entity, its actions may amount to an unconstitutional “Taking” of property in violation of the 5th and/or 14th Amendments to the U.S. Constitution.

Conversion originally constituted converting another person’s goods to your own use, but in modern times, the civil tort of conversion means intentionally interfering or meddling with another person’s goods so seriously that the actor may justly be required to pay the owner for it.  (See also, constructive conversion.)  Interference that is less serious falls under the heading of trespass to chattels.

A Taking, in the constitutional sense originally meant the application of government power to take a person’s property and use it for some public purpose, essentially the de facto equivalent of the power of eminent domain, for which the owner had to be compensated.  However, the Supreme Court has interpreted it to include various types of actual or material interference with private property rights or substantial disturbance of the owner’s use and enjoyment of the property, for example, zoning laws that deny the owner the economically viable use of the land.

Some gun control advocates like to say “no one wants to take your guns away,” conveniently ignoring those people who have clearly stated that is exactly what they want to do.  What those gun control advocates really mean is, no one’s trying to pass a law (right now) to take your guns away (right now).  But in the wake of the Newtown shooting, all kinds of ideas have been batted around for telling law abiding gun owners what we can and can’t do with our guns (not so many ideas for identifying and stopping actual dangerous people).  At what point would these proposals exercise so much dominion over the guns that they amount to taking the guns away right now?

How about a local ordinance that required you to keep your guns unloaded and locked with a trigger lock or similar mechanism when anywhere inside the city limits, including within the physical bounds of your own property, even inside your own home.  Such an ordinance would essentially guarantee that your gun would not be available if you needed it for self defense.  If that ordinance was passed after you bought your gun for self defense purposes, it has the effect of completely interfering with the lawful use and enjoyment of your gun and presents a strong argument for an unconstitutional constructive taking of your property, in violation of the 14th Amendment to the Constitution.

Or how about a law requiring anyone who owned a gun to buy specific firearms liability insurance policies.  I’m not sure exactly what these policies would cover, there are all kinds of problems with the idea from the perspective of insurance law.  But forgetting all of that, for the moment, assume there was a way to have such a law that made sense in the context of insurance law.  Those who couldn’t afford the insurance would be in violation of the law by owning a gun.  In a very real sense, the law just made their ownership of something illegal that was legal when they acquired it.  This seems like a strong example of an unconstitutional constructive taking to me.

Another strong example of an unconstitutional taking, this one based on the time component of ownership rights, is a law that deprives me of the right to leave my guns to my heirs, or requires me to go through someone else to get a background check prior to giving them away without any requirement for anyone else to provide that background check.  In other words, whether my heirs get to inherit my property now depends on the arbitrary whim of another person.  Such a law would effectively eliminate hugely significant aspects of my ownership in both the time component and the scope of my dominion.

On the other hand, the compromise deal reached this past week that merely requires background checks for private sales in commercial settings is really nothing more than an exercise of Congress’s Commerce Clause power and not much of an imposition on private ownership rights.  Regulation of commercial transactions is hardly controversial.

Somewhere between those two extremes is a line we should not cross if we still care about private property rights in this country.  Ignoring for just a moment the 2nd Amendment, we protect property rights in this country for a reason.   The ACLU has expressed concerns over the privacy implications of universal background checks.  It might be worth observing that the very idea of constitutional protection for privacy (including abortion rights and the decriminalization of homosexual conduct) was derived from constitutional protections for private property in the 3rd, 4th, and 5th Amendments.  The right to privacy was found in that “protected penumbra of specific guarantees of the Bill of Rights” first discussed in Griswold v. Connecticut.  That decision has been important to some very important progressive decisions.  But the whole thing may just be a house of cards.  In our rush to “do something” after Newtown, we should remember the old admonishment to “be careful what you ask for.”


Posted in Property, Supreme Court | Leave a comment

Senate Bill 150 – The Assault Weapons Ban of 2013

On January 24, Senator Feinstein (D-CA) introduced a bill that she calls the “Assault Weapons Ban of 2013.”  Senator Feinstein’s website has a link to the text of the bill.  So what does it do?

The bill excludes many of the provisions previously described on Senator Feinstein’s website – registration of firearms, inspection by federal agents, and forfeiture of the firearms at their owners’ passing.

According to the summary/press release on Feinstein’s website (but without the spin), the bill would …

Prohibit the sale, manufacture, transfer and importation of:

  • 157 commonly-owned weapons (by name)
  • An additional group of rifles, shotguns, and handguns that can accept a detachable ammunition magazine and have one or more “military characteristics”  (The previous “assault weapons” ban only defined a weapon as an assault weapon if it had two or more such characteristics, so some firearms that would not have been considered “assault weapons” previously, now will be).
  • Magazines and other ammunition feeding devices that hold more than 10 rounds of ammunition.


  • Grandfathered “assault weapons” and “large capacity” magazines (those that meet the bill’s definitions but which are lawfully possessed on the date of the enactment of the ban) – but see other restrictions below
  • More than 2,200 rifles by specific make and model
  • Any firearm manually operated by bolt, pump, lever or slide action
  • Any firearm that has been rendered permanently inoperable
  • Any firearm that is legally defined as an antique
  • Weapons used by government officials, law enforcement and retired law enforcement.

One of These “Military Characteristics” Makes It an “Assault Weapon.”

  • Pistol grip on a rifle or shotgun
  • Forward Grip
  • Folding, telescoping, or detachable stock
  • Barrel shroud
  • Threaded barrel
  • Grenade launcher or rocket launcher (Yes, they are already illegal).
  • Semi-auto handgun that can accept a detachable magazine at some location outside of the pistol grip
  • Second pistol grip on a handgun
  • Semi-auto version of a fully auto firearm
  • Revolving cylinder on a shotgun
  • Semi-auto shotgun with a detachable magazine
  • Semi-auto shotgun with a fixed magazine capable of holding more than 5 rounds

Other key provisions in the bill:

  • Requires background checks on all future transfers of grandfathered “assault weapons” covered by the legislation (transfers include sales, trades and gifts);
  • Requires that grandfathered “assault weapons” which might be accessible to prohibited persons, to keep them away from prohibited persons, be kept either (1) on your person or close enough to be retrieved and used as if they were on your person, or (2) stored safely using a secure gun storage or safety device; and
  • Prohibits the sale or transfer of “large capacity” ammunition feeding devices currently in existence.

Obviously, the summary doesn’t lay out every aspect of the bill in detail, or even every provision of the bill.  The bill as written also:

  • Requires manufacturers to mark products manufactured after the date of enactment which meet the bill’s definition of “assault weapon” and “large capacity” magazine with the date of manufacture “and such other identification as the Attorney General shall prescribe.”
  • Provides for the seizure and forfeiture of “large capacity” magazines manufactured or sold in violation of the law.
  • Provides for penalties for licensed firearms dealers who transfer firearms and magazines in violation of the law, for example, transferring without conducting required background checks or transferring to prohibited persons.
  • Adds “assault weapons” and “large capacity” magazines to the list of items authorized for buy back with funds under Section 501(a)(1) of the Omnibus Crime Control and Safe Streets Act of 1968.

How Universal is Universal?

Beginning 90 days after enactment, it becomes unlawful to transfer a grandfathered firearm to another person without going through a licensed firearms dealer (who is subject to the laws and regulations regarding background checks and has the means to comply).  The law applies to all transfers, including sales, gifts, and loans of firearms.  It makes an exception for (1) temporary transfers of possession entirely within a shooting range for the purpose of participating in target shooting, where the transferree is not known to be prohibited from possessing firearms, and (2) temporary transfers for the purpose of examining the firearm prior to purchasing.  The bill allows the Attorney General to make regulations implementing this subsection.  The regulations may set maximum fees for license holders to facilitate transfers.  The regulations may not require unlicensed transferors to keep any records of transfers.  The regulations may not require license holders to facilitate such transfers.

At first glance, this seems like a good way to ensure background checks happen in private sales between individuals, in itself a laudable goal.  Unfortunately, it presents all kinds of real problems, both practical and Constitutional.

Example 1 – Momentary transfers:   The bill seems to be attempting to regulate the simple act of one person handing a material object to another person.  By including loans (a temporary transfer of possession, but not ownership) in its prohibited transfers, and by identifying two specific loans that do not have to go through a licensed dealer, the bill seems to be saying that every other temporary transfer of possession must go through a dealer or be unlawful.  So if you, an honored guest, come to my house in 20 years and I show you my vintage AR-15 for the purposes of whatever conversation we are having, it is a violation of federal law for me to put it in your hands to let you examine it without first paying a licensed dealer to perform a background check.  Similarly, if we are out on your ranch hunting wild pigs with your AR-15, you can’t lend it to me to take the next shot without paying a licensed dealer to perform a background check.  Obviously, these are practical problems in the bill, more importantly, they are Constitutional problems.  In my opinion, the Federal Government’s authority under the Constitution to regulate commerce does not include regulating this kind of private behavior between individuals, no matter that the material object in question once traveled in interstate commerce and once affected interstate commerce.  There is simply no connection at all between these private momentary transfers and interstate commerce.  In addition, it raises concerns with regard to my privacy rights and my property rights under the 5th Amendment to the Constitution.

Example 2 – Inheritance:  A gift in a Will is still a gift.  By its own language, this bill seems to apply to inheriting a grandfathered “assault weapon.”  That means paying a licensed dealer, if you can find one, to conduct the background check and facilitate the transfer from the estate to the heir.  Plus, who has custody and/or possession of the firearm in the meantime, and does that transfer of possession constitute a transfer under the bill that requires the services of a licensed dealer to conduct a background check?  And what about intestacy?  If my parents pass away without a will and I claim their possessions as their only living heir, is it a transfer under this bill?  Under Texas law, for example, ownership of property passes to the heirs on the death of the previous owner by operation of law.  Plus, does a violation of the law require intent?  If my parents didn’t intend to die, thereby transferring the firearm to me, and I took possession of my own property without involving a background check by a licensed dealer, has there been a violation of the law?  And even if there has been, who broke it?  My deceased parents?  Again, these are practical problems that need to be addressed in the language of the bill.  Beyond the practical questions, and depending on how they are answered, some Constitutional questions that arise are whether the Commerce Clause power reaches to the passing of personal property, how much Congress can rewrite this area of law traditionally left to the States, and whether in doing so the bill unconstitutionally infringes on property rights or even States rights.

While this version of the bill is certainly less offensive to gun rights than what was previously described, before I could call it at all tolerable I would need to see a better definition of “transfer” under the bill, preferably excluding momentary transfers completely and addressing the inheritance question in a way that not only respects individual property rights but also State sovereignty in our federal system.  And these are just two examples I came to quickly.  It doesn’t take much imagination to see other questions that need to be addressed.

Posted in Preventive Law, Property, Uncategorized | Leave a comment

Seeking Preventive Legal Advice

Here are some ways to get preventive legal advice along with some advantages and disadvantages of each.

Consult lawyers who practice, and are experienced, in specific areas of law:  The advantage is obvious. You’re more likely to get someone with the legal knowledge and skills that apply to a given situation.  The disadvantages may not all be so obvious.  First you have to find and choose a different lawyer for each situation, a task filled with uncertainties.  There are no guarantees the lawyer you hire will have the necessary knowledge, skill, and professional ethics.  Then, the lawyer you choose may be expensive, and generally, the more experienced, the more expensive.  He or she doesn’t know you and may not consider the non-legal aspects of the situation to your satisfaction.  And if she is charging by the hour, the more time spent getting to know you and your situation, the more expensive the advice will be.  On the other hand, if she charges a flat fee for a one-time consultation and advice, she has a financial incentive to spend as little time as possible gathering information, analyzing the situation and advising you on your options, the risks involved, and avenues to minimize those risks.  And what may be the least obvious disadvantage of this approach — it assumes you have already consciously considered a particular situation, weighed the need for preventive legal advice, and identified the legal practice area into which it fits. The lawyer you consult may know a lot about the areas in which she practices but not so much about other areas of law.  To someone skilled with a hammer, every problem looks like a nail.  This first approach requires you to have already done a significant step in the process that may, to some extent, prematurely limit the advice you will receive.

Consult lawyers available at no charge through a benefit or entitlement  program:  Here, we’re talking about military legal assistance programs, law school and bar association clinics, legal aid programs, legal plans provided as employee benefits, and similar arrangements.  For those who qualify, one advantage is obvious … it’s free.  Plus, you’re getting lawyers who have been prescreened by someone else at least once and have some kind of institutional resources supporting their efforts.  You may get a “least-common-denominator” answer, which can be both an advantage and a disadvantage, because it may not be as specifically tailored to your situation as some of the other approaches, but it will also be reliably adequate to most situations.  Further, lawyers in most such programs are well trained to recognize when a situation goes beyond what they are allowed to handle or capable of handling within the program, and will be able to refer you outside the program to a lawyer competent to handle your matter (at your expense).  In this case, the first lawyer has done the work to define the problem and the particular expertise you need in your next lawyer, so the particular disadvantage discussed at the and of the last section is less of a concern.  The disadvantages of this approach are that (1) you will usually have no real choice in the free lawyer you see, (2) the lawyer will not know you or have the time or the incentive to get to know you, and (3) with the exception of lawyers paid by some employee benefit plans, the lawyer will usually realistically only be able to offer what seem like “cookie-cutter” products and advice, which may not be useful if your situation has unique aspects that you want the lawyer to consider and analyze.

Rely on a family-friend lawyer at no charge: As a general approach to preventive law, the advantages of this approach are the lawyer’s personal knowledge of you and your family, mutual trust/concern, relatively easy access, and the lack of up-front cost.  The disadvantages:  You may not know the lawyer’s competence to handle this kind of matter.  You may be imposing on your personal relationship with the lawyer in a way that is not welcome.  It may not be clear exactly what kind of transaction is taking place between you ad the lawyer:  If the lawyer does endeavor to provide legal advice, he or she is obligated to do so just as competently and ethically as if you were a paying client, and assumes some professional liability for bad advice, because you are a client, whether or not you pay for it.  So are you having a casual conversation about a practical matter or is there legal advice being sought and provided?  You may really be taking advantage of that relationship.  Now I’m not saying you shouldn’t ask your close friend or family member a legal question.  I’m talking about relying on them as your standard approach to preventive law.  Would you ask your friend the accountant to do your taxes for free?  or your friend the doctor to provide free medical care?  Or your friend the mechanic to fix your car for free?  Well, you might indeed!  Maybe the answer depends on how much work is involved, how close you are, family norms, how many favors have been changing hands, etc.  And if they said they couldn’t right now because of other commitments, you’d understand and make other arrangements.  But would you ask them to commit to being available whenever you needed it for a indefinite time period?  Certainly not.  And if, instead of an actual friend or family member, the lawyer is a “friend of a friend” or someone you met at a party, then maybe the only advantage is cost.

Acquire a regular lawyer:  Here, we’re talking about, typically, a general practitioner or a lawyer in (what I think of as) a family practice.  The advantages:  The lawyer gets to know you and your family and the situations you are facing.  You have an opportunity to develop trust in each other.  He or she is used to looking at things from a broad perspective. He is in a better position to offer holistic preventive law advice and to refer you to competent ethical specialists if a specific matter requires it.  The professional obligations are clear.  The disadvantages:  As with any other time you choose a lawyer, there are no guarantees the lawyer you hire will have the necessary knowledge, skill, and professional ethics.  And, the lawyer you choose may be expensive, and generally, the more experienced, the more expensive.  At the beginning of the professional relationship, how the lawyer uses and bills for his time in getting to know you and your family will greatly affect your up front cost but also the quality of the advice and other legal services you receive down the road.

There are other ways to obtain legal information.  However, you need to be aware of the risks involved in relying on other options, for example, a lawyer that works for your employer (this person may not represent your interests) or using online “ask the expert” websites (be sure to read the fine print if you decide to use one of these – they usually do not guarantee confidentiality or provide actual legal advice.)

Posted in Preventive Law | Leave a comment

Legal Secrets of the Rich and Powerful? Preventive Law for Ordinary People.

It’s actually no secret.  Wealthy people, large companies, and of course government entities routinely employ lawyers to review their plans and initiatives, and they do it because, among other things, it saves them money.  In fact, in-house counsel today are more involved in their company’s business than ever before.  Similarly, the rich and famous find lawyers indispensable, not because they can’t buy a house or invest their money or make other decisions without a lawyer, but because consulting lawyers helps them take maximum advantage of opportunities and avoid many expensive mistakes.

So why doesn’t everyone consult a lawyer on major decisions that affect their bottom line?  A judge I know recently told me she often sees people in her courts who have hired a lawyer to fix mistakes that came from not involving lawyers in the first place.  It can cost 10 to 100 times as much in legal fees to undo something as it would have cost to get it right the first time.  Wouldn’t you pay $100 to save $10,000?  Preventive legal advice and assistance helps secure legal benefits and protect and enhance relationships, assets and income.  But I have seen it written and heard it said many times, in one form or another:  Ordinary people won’t pay a lawyer for preventive legal services.

I would chalk it up to three excuses:  They think they can’t afford a lawyer; they think they understand the risks they are facing; they think a involving a lawyer won’t make anything better.  It’s no surprise that the rich and powerful have the cash to hire lawyers.  But isn’t it interesting that the rich and powerful are willing to spend that money?  Despite (typically) their success and their education and their business savvy, they know they can’t rely on their own understanding and they know their lawyers improve their bottom line.

Let’s look at some examples of preventive law for families and individuals:

1.  Family Law:  Wendy is divorced and remarried with two children from both marriages.  She has been paying her ex-husband $800 per month in child support since her divorce 10 years ago.  Her oldest child, a senior in high school, just turned 18 and Wendy is excited that she can finally stop paying child support for that child.  The second child is 12 years old.  Wendy believes that she can simply reduce her child support payment to $400 per month, because she thinks one child should be half the child support of two children … This is not usually true.  Wendy hasn’t looked at her divorce decree in a while.  If she had, she might see that the actual amount of child support Wendy was supposed to pay for both children was $900, the decree requires her to keep paying child support for the child until he graduates from high school, and that the amount of child support for just the second child is $750.  Wendy doesn’t know why her ex never noticed he wasn’t being paid enough.  But if he consults a lawyer when Wendy reduces her child support payment, the lawyer’s going to catch it.  This decision could cost her $20,000 or more in back child support and legal fees, which will be garnished from Wendy’s wages for the rest of her working life if necessary. Isn’t it worth $200 to $300 to consult a lawyer first and avoid that mistake?

2.  Employment Law:  Diane works for a large corporate employer.  She often comes home and talks to her husband Jack about the sexually-oriented comments her supervisor makes in the workplace. Jack has often told her that she needs to do something about it but Diane just wants to keep quiet and get by.  Jack can see how upset she is.  He gets upset too because from the way Diane describes it, the supervisor’s behavior is becoming more intrusive.  Jack is worried it will progress beyond verbal harassment.  Lately he’s been thinking about talking to the supervisor himself, maybe at the upcoming office picnic.  He mentioned this idea to Diane and they had a heated argument about it … Jack and Diane need the advice of a lawyer.  As an employee, there are legal protections for complaints made by Diane that usually would not apply to complaints made by Jack.  The company can’t fix the problem if they don’t know about it, but Jack is not an employee so he is increasing the risks to Diane’s job security — without any accompanying benefits — if he communicates with the supervisor or other company officials about the problem in Diane’s place.  On the other hand, Diane would benefit from help in the form of a well-written script or letter describing the observed behavior in an objective and unemotional way, along with a simple request that the behavior stop.

3.  Real Estate:  Donald is breaking up with his girlfriend Daisy.  They have lived together for 3 years in the house they bought together.  Both of their names are on the title and the mortgage.  Neither consulted a lawyer before making the extremely risky decision to buy a house together.  During the 3 years they owned the house, Donald paid all of the bills on the house — mortgage, taxes, insurance, homeowners association dues, maintenance, repairs, upkeep, etc.  Now Donald intends to move out of the house and allow Daisy to remain in the House.  Donald wants nothing more to do with Daisy or the house.  However, Daisy can’t get approval to refinance the loan in her name alone because of her financial situation.  So Donald is going to let Daisy pay the notes on their joint mortgage with the understanding that when the 30-year mortgage is paid off, she will own the house.  What could go wrong, huh?  … Donald is accepting the tremendous risks of home ownership and doing nothing to control or reduce those risks, with none of the benefits of home ownership.  If Daisy runs into any trouble making payments, Donald is responsible for the mortgage.  The same goes for the taxes, homeowners association dues, and insurance.  If he can’t pay it and the house goes into foreclosure, he could end up losing the house and still owing money, with negative effects on his credit rating.  Donald needs a lawyer to inform him of the risks and how to avoid them completely, or at least reduce them.  His unwritten (possibly even unspoken) “understanding” with Daisy is unlikely to protect him.  He’s risking tens of thousands of dollars, his good credit, and his financial well being.  He could spend hundreds of dollars on a lawyer now to avoid or control those risks.

An ounce of prevention really is worth a pound of cure.  Families of ordinary means should have access to lawyers providing services in preventive law.  For most people, this appears to consist, at best, of casual queries to a lawyer in the family or a friend of a friend (the kind that malpractice insurers and state bar professional ethics committees really don’t want us trying to answer).  In a future post I’ll take a look at some traditional and not-so-traditional models of preventive law practice.

Posted in Employment Law, Family Law, Preventive Law, Property | Leave a comment

Constitution Day 2012

September 17, 2012, is the 225th anniversary of the signing of the Constitution of the United States.  The ratification of this document by the required number of states established the United States of America as a sovereign nation.  It was eventually ratified by all 13 of the original states.

I don’t know anyone who would call it perfect.  The signers would not have.  How could it have been?  No one had ever attempted to create a contractual government, with mutual powers,  rights and obligations, on such a grand scale.  The parties to it (The States and The People) were not strictly in compliance with its terms when they agreed to it.  They deliberately left some things undone and some things vague, to be resolved by later generations.

And resolve those things we have tried to do.  Whether oriented in natural law, or social contract, self interest or concern for our fellow human being, we have tried earnestly, even passionately, sometimes violently — through political process, judicial process, demonstration, civil disobedience, even rebellion.

The words of the Constitution are important, just as the words in a contract are important.  They reflect our shared expectations about how this nation’s government will operate, and the limits of its power, and the rights of its people.  If we are to get along as groups and as people, and succeed as a People, we need a shared understanding of those words and a way (preferably peaceful) of working out our differences that is fair to everyone (and especially the least powerful).

But what makes this nation great, in my view, is not just that we have this great document we created 225 years ago, but that we started a conversation about ideals that go beyond the “divine right of kings,” that go beyond “might makes right.”  And that we have had, and continue to have, this coversation.  (Some of the political talk I hear these days sounds a little too much like both of these old ideas, both of which the Founding Fathers mutually pledged their lives, fortunes, and sacred honor to defeat).  This American conversation is about ideas like liberty and justice, probably above all others.  Our Constitution has become the very centerpiece of that conversation in this nation’s political history.

As a result of that conversation, each of us has rights that were without legal recognition when this nation was new.  I believe this nation is better for it, even though recognition of each of those rights signified a loss of power among the most powerful segment of our society.  That was no less true when the Founding Fathers fought for the rights of the Thirteen Colonies.  That liberty and justice for all means less power for a few is a fact of democracy.

At the same time, the conversation must be about compromise and balance.  The Preamble to the Constitution says it is established to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”  We don’t serve the ends described in the Preamble by setting out to take down the powerful.  It’s one thing to safeguard the rights of the weak from abuses of power.  It’s another thing to take rights away from the powerful that belong to each of us just because they are powerful.  This too is part of the American conversation.

There’s been some debate lately about American Exceptionalism.  Are we too far down the list on quality of education, quality of health care, life expectancy?  Is it our military might or the impending introduction of the latest iPhone that makes us the greatest nation in the world?  I don’t think any of these things are all that important to the answer.  To me, the Constitution is our claim to exceptionalism, not because it’s perfect (it’s not), but because of the ideals and the ongoing conversation it symbolizes.


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Death and Taxes

Ernest was a veteran of World War II; he had served in the Marines.  His wife, Sue, worked in civil service for almost 40 years.  They were financially secure.  When they passed away, him in 2006 and her in 2010, they were survived by three children, eight grandchildren, and several great grandchildren.

(Ernest and Sue are fictional but representative of some people sued in foreclosure in Texas courts.)

No one has paid the property taxes on Ernest and Sue’s home since Sue’s death.  Now the county, city, and school district are going to foreclose on the tax lien provided by Texas law – take it and sell it at auction to collect the overdue taxes, plus penalties and interest, plus the title abstractor’s fee, plus court costs, including a fee for an attorney ad litem.

Along with a lot of other lawyers in this county, I accept court appointments to serve as attorney ad litem for deceased or missing defendants in tax foreclosure cases.  The ad litem’s role is to try to locate the homeowners or their heirs, and, to ensure that the legal rights of the homeowner are protected.  In other words, that the county, city, and school district present the evidence at trial to prove they are entitled to foreclosure.  It doesn’t pay a lot but the work isn’t hard and when I can locate an heir and they are able to pay the taxes and save the house, I get a sense of personal satisfaction.  Sometimes I come across a situation that is completely avoidable.  Home ownership is part of the American dream.  So when I see an extended family that is going to lose a home like this, I’m troubled.  And when it is completely avoidable, I’m frustrated — even baffled.

How does this happen to a family like Ernest and Sue’s?  And what steps can you take to reduce your risk?

First, remember, as always, this post is not intended as legal advice, but is offered for general informational or educational purposes.  You should always consult a lawyer about your specific situation.  In fact, one of the mistakes people make that creates this risk is trying to avoid lawyers.

Under Texas law, property always belongs to someone, even though it may not be clear who that someone is.  And the property owner is always responsible for paying the taxes, even if he or she has not received a bill for the taxes.  So legally, we could say that it’s always the property owner’s fault if the taxes are overdue.

Under Texas law, when someone dies, even though ownership passes, title still has to be recorded in the new owner’s name.  In most cases, you’re going to need a probate court to be involved to transfer title.  It may seem to the surviving spouse or an adult child already living in the home that there is no practical reason to probate the deceased person’s estate. It may seem that probate is just a needless hassle and a needless expense in lawyers and court costs.  Don’t make this mistake.

While ownership of the land passes at death to a person’s heirs under the Texas Probate Code, determining who those rightful heirs are is a function of the probate courts.  Probate does not have to be expensive or time consuming, especially if the deceased had a will that provided for an independent administrator, and particularly if no one is going to challenge the will.  But, until that process is complete, you will not be able to record a change in title in the county land records (unless the deceased used some other planning tool, such as a living trust, to convey title outside of probate). And, if keeping this land is important to you, RECORDING THE CHANGE IN TITLE IS ESSENTIAL.  It’s the record owner that willl be notified by service of process when there is a lawsuit to foreclose on the property.  If you’re not the owner in the property records, you may not even find out the property is being taken and sold.

Under the Texas Tax Code, a tax lien attaches to real property on January 1st of the tax year for which it is assessed.  The person who actually owned the property on January 1st is personally liable to the county for the tax for the entire year (even though a buyer may be contractually liable for part of the year).  If those taxes are not paid for any reason, the tax assessor sends delinquent notices to the record owner’s address as listed in the tax records.  Again, if keeping the land is important to you, NOTIFY THE COUNTY TAX ASSESSOR OF CHANGES OF ADDRESS AND OWNERSHIP.

Just as importantly, NEVER IGNORE A NOTICE OF DELINQUENT PROPERTY TAXES.  For federal income taxes, if you don’t  pay the IRS, yes, they will eventually come after you and you will regret it, but if you don’t pay your local property taxes, you will lose your house at an auction.  This is usually a bad way to lose the house because houses sold at auction are sold, usually, at big discounts.  Wouldn’t it make more sense to sell the property yourself at a price that covers the taxes and leaves some cash to be divided among the owners?  Isn’t it better to have some cash left over than no cash left over?

If more than one person inherits a single piece of property and they can’t agree what to do with it, in Texas, you can sue to partition the property and/or either force a sale of the home or have the other heirs buy out your share.

What I think sometimes happens in these cases is that the record owner (an  elderly couple or widow) dies, leaving the home to their child or children.  However, the child or children are also elderly and not able to take care of it or manage their affairs.  So the record owner’s grandchildren end up being responsible for it.  They may not live close to it, or they may not feel a close connection to it, so they may not pay enough attention to it.  Or, there may be someone in the family who needs somewhere to live.  Or, there may be disagreement in the family over what to do with it.  Someone may agree to be responsible for the house or everyone just assumes that someone else is taking care of the taxes.

So Ernest and Sue’s home is now empty, and no one has paid the taxes.  Delinquent notices could have been going to the empty house.  But this may be an unusual case and the county tax assessor may have been notified that their oldest son is the new owner.  So instead the delinquent notices are going to the address of Ernest and Sue’s older son, Ernie Jr.  Ernie Jr. has mentioned the notices to his own son, Rowdy, who is supposed to be taking care of the house.  Rowdy makes a very good living which keeps him very busy.  He figures he’ll take care of the taxes when he can.  He loses track of the time.  The county (and city and school district) files suit for the delinquent taxes.

Whom do they sue?  The record owner of the house – Ernest and Sue – and “if they are deceased, the unknown heirs” of Ernest and Sue.  Sue never had title changed to her name.  Ernie and his brothers never had it changed to their name.  The County doesn’t know whether or not Ernest and Sue are deceased, and if so, who inherited the house — a child, a grandchild, a friend, or their favorite charity.  So the county sues Ernest and Sue and sends a process server to their last known address to try to serve them with process.

The process server is completely unable to serve Ernest and Sue (of course).  So next the county serves them by substitute service (service by publication, also discussed in an earlier blog post; the recent case discussed in that post may have implications for these foreclosure suits).  The Court appoints an attorney ad litem. And the ad litem tries to locate the heirs.  There is a good chance in this case that obituaries and publically available records will lead the ad litem to the heirs.  If the heirs don’t respond to their mail, the doorbell, whatever other methods the ad litem uses to try to reach them, the house will ultimately be sold at auction.  If they do respond, they may finally learn the house is facing foreclosure and they may finally get serious about paying the overdue taxes (plus all of the penalties, interest, fees, and court costs, which may increase the total bill by 50% or more).  If they still choose not to take care of their obligations, they will lose the house anyway.

As an ad litem, I hate to see that, but in the end I console myself with two thoughts.  (1)  I have required the county to present the evidence to prove their case in court.  In doing so, I gave the rightful legal owners every chance I could to comply with the law, pay their taxes, and keep the house.  And, (2) someone who wants the house should have it over someone who doesn’t.  It makes no sense to have a house sitting empty, becoming infested with bugs, rodents, even drug dealers.  If it sits empty, thieves will gradually strip it of copper, appliances, and other hardware.  The lawn is not being cared for.  The property is unsightly.  And the neighborhood suffers in quality of life and in property values.

So if I had my way, of course, people would pay their taxes.  But hey, stuff happens.  So I also wish that people would

–          probate loved ones’ estates promptly – consult a probate attorney

–          transfer title to real estate promptly

–          make sure the county tax assessor has the right address to send tax notices

–          sell property (fast) if it is too hard to take care of it

–          don’t assume someone else is going to take care of it

–          don’t make oral agreements regarding a house – consult a real estate attorney

If everyone satisfied my wishes, I’d be out of the ad litem business for tax foreclosure cases, so I’m not trying to make money here, but trying to lose it.  Best wishes.

Posted in Due Process, Property | Tagged , , , , | Leave a comment

Stranger than Fiction? When You’re Glad Your Health Insurance Refuses to Pay

Her real name is not Dottie Adams. Any resemblance to any real people named Dottie Adams is unintended.  She says she was held for four days against her will in a mental health facility, not allowed to contact family members, and drugged against her will, but a jury will never hear her lawsuit because of a law designed to weed out “frivolous” lawsuits.

When I was a unit commander at Air Force Basic Military Training, I sometimes visited Airmen admitted to the Mental Health ward at Wilford Hall Medical Center.  I knew one unit commander who, when visiting his Airmen there, always left his car keys in his car.  When asked about it, he would explain, somewhat embarrassed, that he was terrified of being confined against his will and this was part of his emergency escape plan.

See, as part of the safety and security requirements for the ward, visitors were required to surrender keys and other potentially dangerous objects when they entered the ward.  He had one of those combination keyless entry systems on his car door.  He thought if he was ever kept against his will, if he could just get to his car with the keys inside, he could get away.

He never said what scenario he had in mind that might get him committed. With the many extra rules the Air Force put in place years ago to protect Airmen from involuntary mental health treatment, I thought he was at least a little paranoid.  None of my Airmen were there against their will.  On the other hand, there’s a reason involuntary and unwarranted confinement of sane people in a psychiatric facility is a staple of horror movies.  It seems to resonate at some primal level.

Apparently, Dottie Adams knows what that feels like. No, she didn’t have a getaway plan.  But she did have a rather unlikely rescuer.  And, oh by the way, her lawsuit was specifically authorized by one Texas law, but that was before “tort reform.”

According to briefs filed in the Texas Fourth Court of Appeals, Dottie went to a private mental health facility seeking outpatient therapy on the one-year anniversary of her mother’s death.  She had received outpatient therapy there a year earlier when her mother died.

In her lawsuit, Dottie claimed the private mental health facility kept her against her will, told her husband she was not there when he called looking for her, falsified records claiming she was suicidal, coerced her into signing forms consenting to her voluntary admission to the hospital by refusing to let her have anything to eat until she did, and administered sedatives and psychiatric drugs against her will. Plus while she was in a drugged state, the hospital failed to provide a safe environment, allowing a male psychiatric patient to enter her room unsupervised. Her repeated requests for immediate discharge were refused even though her admission was “voluntary” and she was not allowed to contact family members.  Every one of these acts, if true, is a violation of the Mental Health Patient’s Bill of Rights  enacted in Section 321 of the Texas Health and Safety Code.  That law specifically authorizes a patient to sue their mental health facility for harm caused by such violations, even if the harm is only mental anguish and punitive damages.

After being in the facility for about 4 days, Dottie was released when the facility found out that her health insurance was refusing to cover the treatment (Dottie’s husband had called the health insurance company). It’s not often we’re grateful to our insurance company for denying coverage! This is clearly one of the exceptions.

Dottie says that she unequivocally told the staff she would never kill herself because of her Catholic faith.  It seems unlikely that Dottie’s psychiatrist thought she was really suicidal, since they released her without any kind of safety plan – for example, outpatient therapy.  Perhaps most telling is that the staff told Dottie’s husband she was not there.  The most likely explanation is that they had no record of her being there because she had not yet been admitted when the husband called.  And the reason she had not been admitted is that they were still trying to “convince” her to consent to voluntary admission (because they knew they wouldn’t be able to convince a judge to confirm an involuntary commitment). Speculation?  Maybe.

We may never know, because Texas law has Multiple Personality Disorder.

You see, the Patient’s Bill of Rights was enacted in the 1990’s by a majority Democratic legislature and governor when horrible abuses of psychiatric hospitals were being exposed. The legislature determined that the threat of private lawsuits by patients and their families was the most effective way to police these kinds of offenses.  (I suppose one alternative might be an expensive big-government mechanism.)  So this part of the law encourages lawsuits, though it doesn’t appear that it ever caused a rash of lawsuits.  More than 10 years later, it seems the threat alone was enough to limit abuses, until now.  Fairly recent decisions (in judicial years) may begin to change that.

Just a few years later, a majority Republican legislature and governor enacted a Health Care Liability Act (part of “tort reform”) allegedly to attract doctors to the state and reduce health care costs by eliminating “frivolous lawsuits.”  One of the requirements of what is now Chapter 74 of the Texas Civil Practice and Remedies Code is that … when you sue a health care provider for wrongs involving treatment, you first have to provide an expert report (or reports) that show: (1) what the standard of care was, (2) how the health care provider failed to meet the standard of care, and (3) how that failure caused your damages.  Expert reports cost thousands of dollars, so this is a significant obstacle to cross before you can even begin your lawsuit, as it was meant to be.  This also adds to that safe zone of harm that a health care provider can cause without having to worry about a lawsuit. So rather than discouraging only frivolous lawsuits, this part of the law also discourages small but valid lawsuits.

In Dottie’s case, the Texas Fourth Court of Appeals decided (correctly, I think) that Dottie’s statutory tort claim was a Health Care Liability Claim, and therefore, it requires an expert report satisfying the requirements of Chapter 74.  If there was a mistake made in Dottie’s case, it was probably by the trial court.  Dottie’s case was dismissed because the judge decided her expert report did not meet the requirements of Chapter 74.  Now in a Patient’s Bill of Rights case, the standard of care is the Patient’s Bill of Rights.  The expert report should only have to state the expert’s qualifications, identify the standard of care (i.e., the pertinent provisions of Patient’s Bill of Rights), state what sources of information the expert relied on (interview of the patient, medical records, deposition testimony, etc), state (based on those sources) his or her opinion as to how the health care provider failed to satisfy the standard of care (i.e., which provisions were violated), the harm suffered by the patient, and how the violations caused the patient’s harm.  If the report met these requirements, which should have been a straightforward exercise, the trial court should not have dismissed the case. The court records on this case are not crystal clear but it appears the expert report met this basic set of requirements and that the defendant (the psychiatrist and the facility) wanted more detail.  It didn’t help that the Patient’s Bill of Rights claim was combined with a malpractice claim, which would have required a more detailed report.  If the trial court expected the Patient’s Bill of Rights portions of the report to read more like a report in a medical malpractice case, the trial court made a mistake.  In your typical medical malpractice case, the standard of care isn’t spelled out in a state law or regulation.  When the standard of care is spelled out in a law or regulation, half the battle is done for you. This question wasn’t appealed to the Fourth Court of Appeals, so there’s no telling if it will hold true in the future.  The only question on appeal to the Fourth Court was whether the Chapter 74 requirement for an expert report even applies to these cases, and there’s little doubt in my mind the “yes” answer to that is well reasoned.

Whether Chapter 74 was intended to undo the good done  by the Patient’s Bill of Rights, who can say.  There’s little doubt as to the meaning of the words; the appellate court was correct to read and apply both laws, not choose the one they wanted to apply.

I wish I could say the same of the Texas Supreme Court’s 2010 decision in another Patient’s Bill of Rights case.  In Wichita Falls State Hospital v Taylor, political conservatism beat out judicial conservatism. The question here was whether sovereign immunity prevents a patient from suing a state psychiatric hospital for violations of the Mental Health Patient’s Bill of Rights.  The Texas Supreme Court said it does. The problem with that ruling is that the Texas legislature clearly and expressly waived sovereign immunity in these kinds of cases by specifically authorizing lawsuits against state hospitals.  The decision goes to great lengths to rationalize away every indication that the legislature intended to authorize suits against state hospitals and ignores the plain language of the law itself.

Section 321.003 of the Texas Health and Safety Code:  “(a)  A treatment facility or mental health facility that violates a provision of, or a rule adopted under (…) is liable to a person receiving care or treatment in or from the facility who is harmed as a result of the violation. (b)  A person who has been harmed by a violation may sue for injunctive relief, damages, or both.  (…)”

Section 321.001:  “Mental health facility” has the meaning assigned by Section 571.003. (…) “Treatment facility” has the meaning assigned by Section 464.001.”

Section 571.003:  “Mental health facility” means: (A)  an inpatient or outpatient mental health facility operated by (Texas Dept of Mental Health and Mental Retardation), a federal agency, a political subdivision, or any person; (B)  a community center or a facility operated by a community center;  or (C)  that identifiable part of a general hospital in which diagnosis, treatment, and care for persons with mental illness is provided.”

Section 464.001  “Treatment facility” means: (A)  a public or private hospital (treating alcoholic or drug dependent persons) (…)”

So all you have to do is plug the definitions into Section 321 of the Health and Safety Code to see that the legislature expressly authorized lawsuits against public hospitals and against mental health facilities operated by the state.

The Texas Supreme Court even said in its decision that there was no evidence that the legislature intended to address problems in state hospitals when it passed the Patient’s Bill of Rights, even though it had an amicus brief before it that proved just the opposite.

This is judicial activism, plain and simple.  The Texas Supreme Court substituted its own policy preferences for the legislature’s policy preferences.  That is not the Court’s role in our state constitutional system.

Unfortunately, with these recent decisions, we may actually see more lawsuits.  If the threat of lawsuits is weakened because it’s harder or more expensive to sue, then facilities have less to worry about and the unscrupulous may be emboldened … abuses may become more common.


Posted in Health Care, Patient's Rights, Tort Reform | Leave a comment

A Win for Families in Texas Supreme Court

Last week the Texas Supreme Court issued a decision protecting a parent’s right to notice when the State tries to terminate parental rights.

The case was styled In the Interest of E.R., J.B., E.G., and C.L., Children.  (The names of the children and parents were withheld to protect the privacy of the children).  The children had been living with their mother, L.R.  Their father(s) were unknown.

The Texas Dept of Family Protective Services (the State) had removed the children from the home, alleging that they were physically abused, that L.R. was using methamphetamine when her youngest child was born, and that L.R. knowingly allowed the children to be in conditions that endangered their physical and emotional well being (also defined as abuse under Texas law). L.R. was often late for court hearings while her children were in foster care.

Several months later, the State initiated proceedings to terminate the parental rights of L.R. and the unknown father(s). However, the State’s attempt to have her personally served by a process server (presumably the Sheriff’s office) failed.  The State case worker did various data searches and checks with other agencies, but found only L.R.’s previous address on record.  There are two versions of what L.R. told the case worker about her address.  The case worker says that L.R. told her she would not have an address where she could be found.  L.R. says that she told the case worker she could be found at her mother’s address. Even though the case worker had a phone number for L.R. and an address for L.R.’s mother, they received permission from the trial court to have her served by “substitute service” (publication of a notice in the newspaper).

Service by publication in print newspapers deserves its own post. As the Opinion noted, readership in local newspapers has dropped sharply.  I hope no one believes that a notice in the newspaper is the best way to provide information to an unknown person or to a person whose whereabouts is uncertain. Anyway …

Then they had a hearing and terminated L.R.’s (and the father(s)) parental rights. There was testimony at the final hearing that the children were doing well in foster care and their foster parents intended to adopt them.  L.R. had visited her children at the case worker’s office just a month before the hearing.

Almost two years later, L.R. sought a retrial on the termination of her rights.  The dispute before the Texas Supreme Court was over the amount of time that had passed and the constitutionality of service by publication in this case.  The Texas Family Code has a six-month deadline to attack termination decrees.  If that limitation is valid in this case, L.R.’s request for a retrial is too late.  However, if that limitation is not valid, then Texas law allows up to two years to seek a new trial when the first trial involved substituted service and the person never appeared in court in the first trial.

So here’s what the Texas Supreme Court said about the constitutional due process requirements for notice in this situation (relying on federal precedent).  If the identity of the person is unknown, one set of legal rules applies, and substituted service may be OK (for example, the unknown father(s) in this case).  However, when the identity of the person is known (as it was for L.R.) the State has an obligation to make a diligent effort to find that person and have them personally served.  “Diligent effort” means — not everything possible — but what a reasonable person would do if they really wanted to find someone (not just what they would do if they wanted to convince someone they had done “enough”).  Service by publication is not enough to provide the court jurisdiction until this requirement for diligence is satisfied.

In this case, the case worker had been in contact with L.R., had her phone number, had her mother’s address, knew that L.R. would visit her children on occasion.  The State hadn’t done everything they would do if they really wanted to find and serve L.R.  Therefore service by publication was invalid.  Therefore L.R. had two years (not six months) to seek a new trial.  Good news so far.

However, the Texas Supreme Court also realized that there are some situations in which it is fair to decide that a parent has waived their rights to a new trial.  Children should not be left in limbo when a parent has not been diligent in asserting their rights.  The children and their new foster/adoptive parents want to be able to rely on that decree.  So “a parent who learns that her rights have been terminated cannot unreasonably delay,” particularly “when a child’s welfare hangs in the balance.”

Clearly, this decision is a good one for parents.  But it’s not only parents that are hurt by a hasty and unwarranted termination of parental rights. Children suffer from the loss of even a bad parent. Anything that makes the State slow down and actually provide the minimum requirements of due process to parents (notice and an opportunity to be heard) before stripping them of something “far more precious than any property right” is a good thing.

If the State is going to leverage practically unlimited resources to sever the ties of four children to their mother, we should all be wary of it taking any shortcuts with due process. But if L.R. knew her parental rights had been terminated and had no good reason for waiting two years to take legal action … then it’s fair to say she abandoned her rights and her children and the court will not entertain her request any further.

In this case, the Texas Supreme Court returned the matter to the trial court to determine whether L.R. unreasonably delayed in seeking a new trial.  If she did, the trial court is justified in denying her request.  The message is clear, a parent who learns that his or her parental rights have been terminated must act right away.

Posted in Due Process, Family Law, Parental Rights | Leave a comment

Supreme Court says Stolen Valor Law goes too far.

In all of the excitement over the Supreme Court’s decision upholding the constitutionality of the Affordable Care Act, you may have missed this one: Today, the Court announced its 6-3 decision in United States v Alvarez, striking down the Stolen Valor Act as unconstitutional in that it violates the 1st Amendment right to freedom of speech. Only Justices Alito, Scalia and Thomas dissented. Now I’m as rabidly defensive of the 1st Amendment as anyone (or so I thought), but I have to agree with the dissent.

The Stolen Valor Act made it a federal crime to knowingly lie that you had been awarded any U.S. military decoration or medal, which crime was punishable by up to a year in prison if the medal in question was the Medal of Honor, 6 months for all other decorations.

From the opinion: “In 2007, Xavier Alvarez attended his first public meeting as a board member of the Three Valley Water District Board. The board is a governmental entity with headquarters in Claremont, California. He introduced himself as follows: ‘I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.’ (…) None of this was true.”  He was indicted and pled guilty, appealing based on the 1st Amendment.  The 9th Circuit overturned his conviction finding the Act unconstitutional and so it came to the Supreme Court.

Chief Justice Roberts, Justice Kennedy and Justices Ginsberg and Sotomayor  were the most protective of the lies in question, applying strict scrutiny to the Act.  In a concurring opinion, Justices Kagan and Breyer were less inclined to protect the lies, applying an intermediate scrutiny test. The dissent gave the lies no 1st Amendment protection, finding there was no consitutional value in these particular intentional false statements of objectively verifiable fact. Furthermore, the dissent noted that there was not even a chilling effect to be concerned about because there were no truthful statements which would be discouraged by the Act.

The plurality and concurring opinions go on at length regarding the breadth of the Act’s reach. The majority seems concerned that someone could be prosecuted under the law false statements made in private.  Maybe they imagine a sting operation involving federal agents in a white van and a pretty girl in a bar wearing a wire.  The majority suggests that the Act would survive consitutional challenge if it were more narrowly tailored so that it is only a crime to lie about receiving military decorations for financial gain, or when the lies caused financial harm to someone.  And I don’t doubt that a narrower version could be written and enacted.

But in my view, what the majority got wrong is this:

First, there is no reason to assume the law would be applied to private communications.  The Court could have waited for such a case and held the Act unconstitutional only as applied in those circumstances.

Second, with respect to false claims regarding military decorations made to a wider audience, the majority just doesn’t get that any such lie causes harm.  It harms the people who earned those decorations.  It harms their family members, who may have nothing left of their beloved hero but a medal in a display case. It harms the institution of the Armed Forces. It cheapens the act of military service in the eyes of the public.  It causes damage to the reputation of everyone who can legitimately claim to have received a medal because each such claim becomes suspect.

Third, against this harm, compare the complete absence of risk to free speech rights by allowing prior restraint on this narrow category of speech. The dissent spells out exactly why the some lies may be worthy of 1st Amendment protection, but these lies are not.  I won’t repeat the reasoning here.  The bottom line is, the Stolen Valor Act is such a narrow exception that it presents no threat to free speech.

I will be severely disappointed if someone in Congress doesn’t draft a still narrower version so we can try this again.

Posted in Military, Supreme Court | Leave a comment